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Tuesday, July 14, 2009

John Comaroff’s ‘Politics of Law’

Achille Mbembe and John Comaroff

John Comaroff’s presentation on “Politics of Law” largely centered on the growing hegemony of the law and the rising culture of legality as the privileged domain of 21st century politics. In what follows, I will attempt to touch on a few key points that emerged in Comaroff’s robust presentation.

Rather than relying on the symbology of the process of sacralization we find in theorists that have returned to the work of the likes of Kantorowicz to argue that the force of law relies on the sacred invocation of sovereignty in its complex and always delimiting forms, Comaroff posited a “fetishization” of the law which is built into and results from the administrative invocation of the language and praxis of legal constitutionalism. The law as fetish is the abstract made real, represented as if imbued with an agency of its own, functioning through legal and legalistic discourse that hides power relations through a kind of (fiction of) commensurability. Lawfulness, Comaroff argued, is increasingly read as synonymous with justice, placing under erasure the violence of the law—its exclusions and the commissioning and decommissioning of forms of life.

By drawing upon what Bruce Ackerman has coined the “faith in constitutionalism,” Comaroff highlighted how the terrain of politics today makes of the juridical the privilegeddomain of political contestation. His examples included the Indian constitution which gives the Constitutional Court jurisdiction over executive decisions as well as the functioning of U.S. constitutionalism which makes of the court the arbiter of the validity of congressional and executive legislation. Politics, Comaroff seemed to argue, functions increasingly in the interstices of or through the juridical or perhaps, if we consider his example of “legalized illegalities”[1], in spite of it. The point is, Comaroff argued, the construction and reliance on the legal subject as a kind of privileged model of citizenship and the faith in the law’s operational justice have become fundamental to the functioning of the political, allowing for the contestation of political power (in the case of governments sued in their own constitutional courts) while producing and delimiting the landscape of possibilities. He argued for the way in which the emphasis on the juridical as a privileged site of contestation works with a kind of “evangelizing” of a particular kind of legal subjecthood premised on a rhetoric of the right to desire made through claims of injury.

These claims of injury, Comaroff argued, are key to what he has coined “neoliberal constitutional design.” The neoliberal here seems to function at the level of legislative and constitutional interpretation which makes of personhood an atomized legal subject functioning in a supposedly commensurate space of judicial contestation. Pointing to how bureaucratic and parliamentary authority are increasingly subjected to constitutional authority, he astutely pointed to the intentional fallacy inherent in readings of constitutionalism as a liberal institution divorced of the function of interpretation through which it is constantly made and remade. It remains unclear to me, however, what labor this notion of “neoliberal constitutional design” actually performs. That is, does not the reliance on this concept further reify a kind of faith in constitutionalism—as if it functions independently of the regimes of interpretation marked by the functioning of ordinary judicial processes?

Comaroff noted that even though many constitutions today recognize claims of difference, there is a tendency of the “neoliberal constitution” to limit the process of litigation to claims of injury as posited by atomized units—individuals and groups of individuals (class action), thus making it difficult to obtain economic rights for ethnic groups more generally. Yet, in referring to the case of the San, he also pointed to how group identity can be normativized and cemented through “identitarian class action” and constitutional interpretation—that is, even the acknowledgement of group rights functions through a strict logic of singularity, a point which seems to relate to why so very few juridical claims can be made on grounds of human rights.

Another series of discussions that came up in Comaroff’s lecture were the ways in which the juridical order is an increasingly important site of religious contestation (specifically, I believe, he said in the “Muslim world”) and that religion is increasingly being posited in debates about the law. Reading the call for Sharia-based regimes of power as a call for the “rule of law” Comaroff argued that these calls fall within a “modernist point of view.” He also cited as an example cases operating around the attempt to institutionalize qualities/properties as rightful predicates of Islam. In short, he argued that the politics of faith is increasingly operating around this juridification of the political.

A question that can be asked of his delineation is to what extent it is that his own reduction of a myriad of different phenomena to the “sacralization of the law” actually obtains. A few of the divisional constructs that we can consider beyond this characterization of “sacralization of the law” include the sacralization of constitutionalism, juridification of the everyday (as suggested by seminar participant Brian Goldstone), an instrumental form of resistance, the neo-liberalization of legal interpretation, and the juridification of theology (obviously this is not an exhaustive list). Comaroff readily drew upon examples ranging from India, the United States, England, South Africa to “the Muslim world,” to name a few, leaving some in the audience to wonder to what extent his conclusions about the sacralization of the law depended on his own totalizing gestures, both of reducing a set of different kinds of examples to a singular framework of “sacralization” of the law and of generalizing a condition based on a set of markedly different examples from different sites and contexts. Though the generalizations of the presentation were undoubtedly a function of the attempt to provoke the engagement of an audience of scholars working on markedly different sites, disciplines, and topics, the following question still remains open: can these different examples drawn upon can be rightfully subsumed under either the appellation of ‘sacralization’ or that of ‘the law.’

Sharareh Frouzesh Bennett

[1] According to Comaroff, “legalized illegalities” refers to legislation forwarded for its temporary effects with the knowledge that it will eventually be overturned in court.

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